CONSTITUTIONAL
AND LEGAL MATTERS

289. The Council recalled that at its Eighty-ninth Session (November 1985) it was called upon to elect the Members of the Finance Committee in accordance with the procedures laid down in
Rule XXVII.3 of the General Rules of the Organization (GRO). When the Council
proceeded to the second stage of the election referred to in Rule XXVII.3(c),
there were four candidates for three seats: two candidates from Europe, one
from South-West Pacific and one from North America. The candidates that
received the largest numbers of votes, and were therefore declared elected,
were the two candidates from the European region and the candidate from the
South-West Pacific Region. Since no representative of the North American region
had been elected, the question was raised “whether Rule XXVII.3(c)(ii) should
be interpreted in such a way as to make it permissible for any one of the three
regions not to be represented, when there was at least one candidature from
each of those regions”.2 Following a discussion on this matter, the Council had “requested the CCLM” to examine the relevant parts of Rule XXVI and
Rule XXVII GRO and to report its findings, including the text of possible
amendments to the Rules that would clarify the question of regional
representation on both Committees, to its session in November 1986.3

290. The Council further
recalled that the Committee on Constitutional and Legal Matters (CCLM), after
considering the matter at its Forty-eighth Session (September - October 1986)
pointed out that, with respect to the possible amendments, three options were
possible. In particular, the third option, which was indicated as “Alternative 3”,
was set out as follows in paragraph 27 of the CCLMs Report:

“Yet another possible solution would consist in changing the
election procedures so that in a first round separate votes would be taken in
order to elect one representative from each region, without prejudice to the
practice of block voting in cases where the number of candidates was the same
as the number of seats vacant. Subsequently, a vote would be taken according to
the procedure at present in force, in order to elect the remaining members of
the Committees”.4

291. The Council finally,
recalled that at its Ninetieth Session (November 1986) different points of view
were expressed with respect to the question of the election of members to the
Programme and Finance Committees. At that session, the Council “reaffirmed the
desirability of guaranteeing just and equitable representation on both
the Programme Committee and the Finance Committee, and considered that each
region should be represented if it wished to be. It also considered that such a
representation should not entail any increase in the number of members on
either Committee”.5In addition, the Council had decided that “in
the light of the opinions which had been expressed during the Council debate,
the CCLM should examine in depth the outcome of the debate and especially the
implications of Alternative 3 in paragraph 27 of the CCLM’s Report, and report
its recommendations to the Council, which would examine the question further at
its Ninety-first session”.6

292. The Council had before it
the Report of the Forty-ninth Session of the CCLM.7 It noted the
CCLM’s views that “Alternative 3” would certainly guarantee just and equitable
representation on the Programme Committee and Finance Committee, in that it
would ensure the representation of each region that wished to be represented;
that the requirement that the number of members of either Committee would
remain unchanged, would also be fulfilled; that on the other hand, the solution
envisaged in “Alternative 3” could be somewhat more time-consuming than the
present method of election and would also leave open some delicate questions -
concerning the distribution of seats - which would have to be solved before any
amendment to the General Rules could be adopted.

293. The Council also took note
of the CCLM’s observations on the legal and procedural implications of
“Alternative 3”, in particular as far as the General Rules of the Organization were
concerned.

294. In the course of the
debate, all members stressed the importance of the principle of just and
equitable representation of all regions on both the Programme Committee and
Finance Committee. Some members expressed the view that, in order to ensure the
practical applications of this principle, the rules governing the election
procedure should be amended; therefore they suggested that the Council request
the CCLM to draft the specific amendments that would be needed. On the other
hand, many members expressed the view that no amendments to the Rules were
necessary, and that the principle of just and equitable representation could be
achieved through improved coordination before the vote among the regions as
well as among the countries constituting each region. For this reason, they
considered that the matter did not require formal action by the Council.

295. Since no consensus could be
reached on the action to be taken, the Council requested the CCLM to
continue studying the problem, and expressed the hope that further reflection
on this matter might make it possible to reach a consensus at its Ninety-second
Session.

296. The Council recalled that
the question of FAO’s immunity from legal process in Italy had been under’
discussion by the Conference and Council since 1982 on account of a judgement
rendered by the Corte di Cassazione containing an interpretation,
considered restrictive, of Section 16 of the Headquarters Agreement which
provided that the Organization enjoyed “immunity from every form of legal
process” unless it waived such immunity. The Council further recalled that,
since no satisfactory solution had been found whereby FAO’s immunity from legal
process could be safeguarded in the future, the Conference, at its Twenty-third
Session (November 1985), had considered the question whether an advisory
opinion should be sought from the International Court of Justice on the
interpretation of Section 16 of the Headquarters Agreement. At that session,
the Conference had agreed “that it would not be desirable at this stage to
submit the questions forwarded to it by the Council to the International Court
of Justice and that it would be preferable to reconsider the matter, as
necessary in the light of a report by the Director-General on developments, at
its next session”, and in the meantime had invited “the Director-General and
the Italian authorities to explore all possible means of arriving rapidly at a
definitive solution which would ensure that FAO would enjoy immunity from all
forms of legal process in Italy”.

297. The Council was informed
that pursuant to the wish expressed by the Conference, representatives of the
Host Government and the Director General had met on a number of occasions in
1986 with a view to identifying a mutually satisfactory solution to the
problems that had arisen as a result of the Corte di Cassazione’s
judgement, and that these meetings had taken place in a most constructive
atmosphere. The Council was further informed that in the course of the
discussions that had taken place, the representatives of the Host Government
had pointed out that the promulgation of new legislation would give rise to
considerable procedural and other difficulties, and that on account of the
independence of the judiciary, new legislation would not provide a guarantee
that the Organization’s immunity would invariably be upheld, since it too would
be subject to interpretation by the Italian courts. Therefore, an alternative
solution recommended by the Host Government had been explored. This solution
was based on the fact that Italy had become a party to the Convention on the
Privileges and Immunities of the Specialized Agencies (CPISA) on 30 August
1985, following its withdrawal of reservations made in 1952. Italy had not
previously been considered a party to the Convention since the reservations,
one of which sought to limit the immunity from legal process of the specialized
agencies to that accorded to foreign states, had not been accepted by the,
specialized agencies.

298. The Council had before it
the Report of the Forty-ninth Session of the Committee on Constitutional and
Legal Matters. In this connection, the Council noted that the CCLM had given
its attention to the provisions of the CPISA that were most relevant in the
context of FAO’s immunity: namely Sections 4 and 31(a). Section 4 provided, in
the same terms as Section 16 of the Headquarters Agreement, that the specialized
agencies “shall enjoy immunity from every form of legal process” except insofar
as they have waived their immunity. Section 31(a) provided as follows:

(a) Disputes arising out of contracts or other disputes of
private character to which the specialized agency is a party”.

The obligation contained in
Section 31(a) was the natural corollary to the immunity from legal process contained
in Section 4; if an organization did not waive its immunity it was bound to
ensure that such immunity did not lead to a denial of justice. Since such a
provision did not exist in the Headquarters Agreement, the applicability of the
CPISA to FAO laid down an express treaty obligation for the Organization
instead of an obligation which had previously been recognized merely on the
basis of FAO’s consistent practice.

299.- The Council was informed
that in the light of the new situation that had arisen as a consequence of
Italy’s having become a party to the CPISA, the Host Government and the
Director-General had entered into official correspondence setting forth in
detail the way in which the Organization would implement Section 31(a) of the
CPISA.

300. Whereas the CCLM recognized
that the correspondence in question did not carry the weight of new legislation
which had received formal parliamentary approval, it nevertheless felt that
since the correspondence would be published in the Gazzetta Ufficiale it
would undoubtedly have considerable persuasive value if invoked before an
Italian court, since it contained a detailed description of the ways in which
FAO would ensure that any potential claimant would receive a fair hearing. The
Council noted the CCLM’s conclusion that, although new legislation would have
placed the Organization’s immunity on a firmer legal basis, the correspondence
constituted an appropriate and practical solution. Accordingly, following the
CCLM’s recommendation, the Council endorsed the view of the Host
Government and the Director-General that the correspondence represented a
practical approach to a solution of the problem of securing the Organization’s
immunity from legal process in Italy.

301. In the above connection the
Council commended the constructive spirit in which the discussions between the
representatives of the Host Government and the Director-General had been
conducted, and hoped that the Host Government would not discard the possibility
of ultimately taking legislative measures that would give further legal
protection to FAO.

302. It was drawn to the
attention of the Council that the efficacy of the. solution could only be
tested if another action were to be brought against the Organization in the
Italian courts. The Council noted that the CCLM was of the opinion that this
solution would be more likely to be effective if FAO were to put in an
appearance in court just to plead its immunity. The Council agreed with
the CCLM’s conclusion that in the light of the correspondence referred to above
and Italy’s having become a party to the CPISA, there were grounds for the
Organization to take a more flexible position than that confirmed by the
Council at its Eighty-seventh Session (June 1985) whereby the Director-General should avoid any participation
in proceedings before the Italian courts that was inconsistent with the
Organization’s immunity from jurisdiction. In conclusion, therefore, the
Council agreed that, henceforth, if the Director-General deemed it
appropriate in the circumstances, he should be free to arrange for the
Organization to plead its immunity in court, possibly through the Avvocatura
Generale dello Stato whose services had been offered by the Host
Government.

303. The Council was informed
that the Vienna Convention on the Law of Treaties between States and
International Organizations or between International Organizations had been
adopted in Vienna on 21 March 1986 and that it was open for signature by States
and international organizations, including FAO, until 30 June 1987. The
Convention made general rules of international law embodied in the Vienna
Convention on the Law of Treaties of 1969, which only applied to treaties
concluded between States, applicable to treaties concluded by international
organizations, and would consolidate the treaty practice of international
organizations without, however, restricting it.

304. The Council noted that the
Administrative Committee on Coordination of the United Nations System had urged
the organizations concerned to consider favourably the signature of the
Convention and that in a decision adopted at its Forty-first Session in 1986
the General Assembly of the United Nations had also urged States and
international organizations to become parties to the Convention. As there were
no specific provisions in the Basic Texts which envisaged FAO’s becoming a
party to such a multilateral treaty, the Director-General had submitted the
question of the possible signature of the Convention to the Council through the
CCLM.

305. The Council shared the
CCLM’s view that it would be desirable for the Convention eventually to become
applicable to the treaties concluded by FAO and, consequently, authorized
the Director-General to arrange for the signature of the Convention on behalf
of FAO. The Council was informed that the Convention had already been signed by
four other intergovernmental organizations, namely the United Nations, the
International Labour Organization, the World Health Organization and the
Council of Europe.

306. In authorizing the
signature of the Convention on behalf of FAO, the Council recognized that this
act would not make FAO a party to the Convention. In this connexion the Council
endorsed the CCLM’s view that it was premature for FAO to deposit an
instrument of formal confirmation or accession, since the Convention would only
enter into force upon ratification or accession by 35 States, while the deposit
of instruments by international organizations did not count towards entry into
force; as of 18 June, 22 States had signed the Convention, but none had
ratified it or acceded to it. The Council therefore agreed with the CCLM
that the question of FAO becoming a party to the Convention should be
considered at a later date and that a decision on such a question should be
taken by the Conference.

307. The Council was informed
that the Director-General had invited the German Democratic Republic to attend
in an observer capacity the Twenty-seventh Session of the European Commission
for the Control of Foot-and-Mouth Disease (Rome,. April 1987), and the Union of
Soviet Socialist Republics (USSR) to attend in an observer capacity the
aforementioned session and the Seventeenth Session of the Committee on
Fisheries (Rome, May 1987). The invitations had been issued in accordance with
paragraphs B-1 and B-2 of the “Statement of Principles relating to the Granting
of Observer Status to Nations”.10

308. As provided for in Rule
XXVI-4(a) of the General Rules of the Organization (GRO), the Council was
advised that Mr Arkell D. Weygandt had replaced Her Excellency Millicent H.
Fenwick as the Representative of the United States of America, that Shri V.K.
Sibal had replaced His Excellency Akbar Mirza Khaleeli as the Representative of
India, and that Mr Michel Mombouli had replaced His Excellency Joseph Tchicaya
as the Representative of Congo at the Fifty-second Session of the Programme
Committee.

309. As provided for in Rule
XXVII-(a) of the General Rules of the Organization (GRO), the Council was also
advised that Mr John Lester Sault and Mr David Lawrence Coutts had replaced Mr
Barry Martyn as the Representative of Australia at the Fifty-ninth and Sixtieth
Sessions of the Finance Committee, respectively.

310. The Council took note of
the substitutes and thanked the outgoing members for their valuable services.